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A harsh verdict

Updated August 01, 2017

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ELECTED rulers are not above the law if they commit crimes. Democracy is bolstered if they get barred via due process. The Supreme Court launched an unprecedented inquiry via its 184(3) discretionary powers into Sharif finances based only on suspicion.

Since the National Accountability Bureau (NAB) rarely investigates its bosses, the court’s step was right. But its novelty and focus on one clan made it critical that the inquiry follow clear law and precedent with no further judicial discretion to avoid bias charges.

I had many concerns pre-verdict, two of which would have doomed the verdict for me. The first was Sharif being barred due to his adult children’s crimes. The second was the use of a vague and moralistic view of Article 62 rather than a legal one as always before. The verdict avoided both concerns.

There are other issues. This is the first time an MP has been barred without trial and that too by the Supreme Court directly, which means no appeal. Article 10-A mandates a fair trial for people facing criminal charges. Was Sharif given one? The long hearings in court were an inquiry and not a trial. Some say the Supreme Court can give verdicts without trial if guilt is self-evident. I see Article 10-A but not these powers given anywhere. Did the court, the Constitution’s protector, give itself the power to override it unilaterally?

Nawaz Sharif should ask the court for a review

Even when guilt is self-evident, why not send the case for a quick trial to meet constitutional edicts, document things and decide a fair punishment? Nor is guilt self-evident here. The verdict unseats Sharif for not declaring a salary he never took, terming it a receivable asset.

In cash accounting, which individuals and small firms use, assets only include those in hand. Accrual accounting, which large firms use, also includes receivables. The latter is more accurate but both are legal.

As an individual using cash accounting, Sharif was right in not disclosing receivables. But the court says he should have used the strict accrual accounting view of assets even if individuals don’t use it and the Election Commission of Pakistan gives no guidance. It is right if one takes the strictest view but this strict view has never been used before to bar MPs.

Many may ask if the bench took this strict view as it was upset at the more serious charges the joint investigation team levelled (which the court had to send to NAB legally) and was looking for anything small to bar Sharif. To avoid such charges it was best to send the case for a quick trial to other judges. They may have barred Sharif too, but not for life, which seems harsh for this minor and iffy issue. MNA Iftikhar Cheema hid not iffy receivables but physical assets and was barred in 2016 but not for life. Sharif should ask the court for a review given the lack of a fair trial and the legality of cash accounting. But any reprieve may be brief since he may get convicted in NAB cases soon.

So, I find the process flawed. The verdict is not outright wrong but unprecedented, borderline and given hastily by the apex court when it should have been left to the trial court. But borderline verdicts can expand the borders of accountability. Should we celebrate the new strict approach? We could if it is applied to others too, especially Zardari, Altaf Husain and Jehangir Tareen, and the court ensures the autonomy of NAB and the Federal Investigation Agency. But any indecision after Sharif’s case would be seen as selective accountability.

There is a larger issue here. By delinking disqualification from serious crimes and linking it to a minor issue, there could be challenges for relatively honest persons like Imran who may have erred on a minor issue too.

But it has allowed corrupt persons like Sharif to claim bias for being barred for a minor act. It is better to quash this strict verdict and precedent in review.

The logic for the court’s unusual inquiry against Sharif was executive agencies’ fear of trying the powerful. But this logic applies well to another case which executive agencies and even prime ministers fear pursuing: Musharraf’s case. Given civ-mil imbalances, the court must itself fast-track it. His guilt is self-evident. So can he be convicted sans trial? As a true believer in the rule of law, I oppose even that. But his trial should end soon.

Nawaz Sharif should be punished for his crimes. His NAB cases present an opportunity to do so. But verdicts like this one only backfire.

However, for many educated people, all this is irrelevant. A lack of regard for the rule of law plagues not only our elites but vast sections of our educated middle class too which support coups, military courts and iffy verdicts.  

The writer is a Senior Fellow with UC Berkeley and heads INSPIRING Pakistan, a progressive policy unit.

Published in Dawn, August 1st, 2017